Posted
by
kdawson
on Wednesday December 23, 2009 @08:13AM
from the bad-money-after-good dept.

eldavojohn writes "Comcast has settled out of court to the tune of $16 million in one of several ongoing P2P throttling class action lawsuits. You may be eligible for up to $16 restitution if 'you live in the United States or its Territories, have a current or former Comcast High-Speed Internet account, and either used or attempted to use Comcast service to use the Ares, BitTorrent, eDonkey, FastTrack or Gnutella P2P protocols at any time from April 1, 2006 to December 31, 2008; and/or Lotus Notes to send emails any time from March 26, 2007 to October 3, 2007.' $16 million seems low. And it's too bad this was an out-of-court settlement instead of a solid precedent-setting decision for your right to use P2P applications. The settlement will probably not affect the slews of other Comcast P2P throttling suits, and it's unclear whether it will placate the FCC."

Also, although I am not in Comcast's service area, if I were I don't think I would want to sign a piece of paper saying I used one or more P2P services between two dates. The MPAA and RIAA are way too aggressive to give them even a sliver of help for $16.

They certainly exist, but they don't have control over the media. After 21:00, supposedly when young children are no longer watching, pretty much anything except porn is broadcast on normal channels. Before that time nudity would normally be non-sexual.

Absolutely correct. It's like having to sign a paper publicly admitting you have some socially unacceptable disease in order to receive the benefits of the suit. You shouldn't have to shame yourself -- or in this case expose yourself to risk of prosecution and/or increased review by lawyer-happy third parties interested in your online P2P activity. You would be painting a big target on yourself and if you were ever actually accused of distributing / downloading items via P2P you've just removed your "couldn

This isn't intended to jinx you or anything -- but if anyone is going to get hit with a suit by the **AA's I hope it's a lawyer. They're the only ones who can afford to defend themselves. Most of the rest of us can't afford your industry's rates.

Not only that, but it basically immunizes them against further lawsuits on the issue. Sometimes, I think some of these class action suits are the result of a collaboration between the companies and some lawyers. The lawyers get a big payday, the companies get immunity from anymore lawsuits, and the consumer gets screwed.

Comcast is not immunized from further suits. As long as you don't take part in the settlement, you can still sue them individually. Alternately, although it is unlikely a judge will certify another class over the same issue, it has happened before (see asbestos lawsuits).

Class actions let you bring suits where no one person has been harmed a meaningful amount. How much legally-cognizable value did you lose from having P2P interrupted? Probably not enough to sue over. Without class action, comcast

You're right, there is no binding precedent or permanent injunction, but a ruling can go either way - comcast could have gotten permission to screw with their network in the future. Of course a settlement isn't as good as a favorable ruling, but it does signal to others that they can expect meddling to cost $16M and a lot of bad publicity. Plus, the incident brought the FCC down on this kind of behavior, so ISPs have that to worry about too.

As long as you don't take part in the settlement, you can still sue them individually.

Actually, as with most class action settlements, everybody is opted in by default, and you must explicitly opt out in order to retain your rights to sue on your own. Didn't hear about the settlement in time to file a claim or opt out? Gee, that's a shame.

Actually, as with most class action settlements, everybody is opted in by default, and you must explicitly opt out in order to retain your rights to sue on your own. Didn't hear about the settlement in time to file a claim or opt out? Gee, that's a shame.

Nothing's written in stone, especially when agreements are made without your consent. While it's always best to take action in a timely manner, it is possible, in some cases, to argue that special circumstances warrant "turning back the clock." Note that

I know $16 isn't much, but really how much do you think is reasonable for a few months of p2p interruption on a residential cable line?

Considering they did that while at the same time advertising "unlimited internet" it should be worth the monthly fee x however many months (counting even fractional months as 1 month) the interruptions occurred. Of course, if you were smart enough to block RST packets on the affected ports, there really isn't much to complain about.

Your suspicions are correct. My company actually initiated one of these class actions after getting sued by an unscrupulous customer with an unscrupulous lawyer. Their case had no merit whatsoever, but it was about the 5th such case - clearly seeking an "it's cheaper to settle than litigate" settlement. We got the unscrupulous lawyer to bite on the idea of owning a class action suit. We then answered his subpoenas, helped him contact the class and get certified and then settle. It immunized us from any

Although it wasn't a fine, McDonald's changed its business practices when sued for the dangerous temperature of their coffee. While the case has been the butt of many, many jokes the jokes (and vitriol) are primarily based on misinformation.

Between 1982 and 1992, over 700 people had been seriously burned by McDonald's coffee that was brewed at a temperature that was not fit for drinking; at the time they were serving coffee at a temperature of 180-190F, a temperature that can result in third-degree burns in as little as two seconds. They had already paid claims as high as $500,000 for burns resulting from these high temperatures but had apparently done nothing to change their procedures to prevent future injuries.

Enter 79-year-old Ms. Liebeck and the infamous "coffee lawsuit." In 1992 she purchased a cup of coffee at a McDonald's drive-thru; placed the cup between her knees; and removed the lid to add cream and sugar. The cup slipped, spilling the coffee onto her cotton sweatpants which absorbed the hot liquid, resulting in serious burns.(1) This brief exposure to the coffee resulted in burns over 16% of her body, 8% of which were third-degree burns requiring skin grafts on her groin, buttocks, and thighs. She was in the hospital for eight days as the result of these injuries.

She requested $20,000 from McDonald's to cover her medical bills (which were $11,000) but McDonald's only offered $800. After filing suit a third-party mediator advised settlement of $225,000 but McDonald's refused. At trial the jury found Ms. Liebeck partly responsible for her injuries (20%) with McDonald's liable for the remaining 80%. She was awarded $160,000 ($200,000 less 20%) for compensatory damages (actual damages plus injury and harm) as well as $2.7M in punitive damages (intended to punish the harming party). The jury came up with the punitive damages amount based on two day's sales of McDonald's coffee throughout the franchise.(2) The jury's intention was to send McDonald's a message in an attempt to get them to change their business practices.

It worked. Days after the verdict the coffee served by the same McDonald's location was twenty degrees cooler. Additionally the restaurant now adds cream and sugar to the coffee for you at the drive-thru, mitigating the risk of a repeat incident.

Unfortunately this "example" of how to change corporate behavior has served as a rallying cry for corporate interests. When it's the businesses that control media spin it can become difficult for individuals to properly position stories that are "pro-consumer."

I agree that $16M is unlikely to affect change at Comcast (at least to the extent that their customers would like) but feel that it's a step in the right direction. I'm one of the "affected" customers here and will take my $16 and move on; nothing would preclude me from filing suit if they were to recommence (or continue?) their behavior in the future.

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(1) Despite common belief to the contrary, Ms. Liebeck was not the driver of the car. She was a passenger. Additionally, the driver, her grandson, actually pulled the car over and came to a stop to allow Ms. Liebeck to carefully remove the lid. She had taken what many would consider to be the steps of a "reasonable" person.

(2) On appeal the punitive award was reduced to $480,000 and the parties eventually settled out of court for an amount presumed to be in the neighborhood of $600,000.

Wiki:"Though defenders of the Liebeck verdict argue that her coffee was unusually hotter than other coffee sold, other major vendors of coffee, including Starbucks, Dunkin' Donuts, Wendy's, and Burger King, produce coffee at a similar or higher temperature, and have been subjected to similar lawsuits over third-degree burns"

In fact, "McDonald's policy today is to serve coffee between 80–90 C (176–194 F), relying on more sternly-worded warnings to avoid future liability..."

While I don't feel that your derisive "blah blah blah" was necessary I appreciate the opportunity to "debunk" another myth.

"Standard serving temperature" implies that this would be a reference temperature against which temperatures at other restaurants would be compared; but McDonald's served their coffee at a higher temperature than their peers.

In preparation for the trial, the plaintiff measured temperatures at 18 restaurants and 20 McDonald’s, and “McDonald’s was responsible for nine of the twelve highest temperature readings.”

The McDonald's QA Manager testified that the corporation realized that burns would occur, but maintained the "holding temperature" of 180-190(1) of its coffee because their research indicated customers buy coffee on their way to work or home and so wanted the coffee to be at an appropriate temperature up to thirty minutes later.

Hardly a "standard" nor an appreciation for consumers well-being.

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(1) by comparison the average holding temperature coffee at home is 135-140

Though defenders of the Liebeck verdict argue that her coffee was unusually hotter than other coffee sold, other major vendors of coffee, including Starbucks, Dunkin' Donuts, Wendy's, and Burger King, produce coffee at a similar or higher temperature, and have been subjected to similar lawsuits over third-degree burns.[18]

Home and commercial coffee makers often reach comparable temperatures.[19] The National Coffee Association of U.S.A. instructs that coffee should be brewed "between 1

Yes; much comes from the case itself but unfortunately it was not reported and may be difficult for you to locate without using a paid service (West or Lexis). Here's the information in the event that you are able to look it up: Liebeck v. McDonald's Restaurants, P.T.S., Inc.,
No. CV 93 02419, 1995 WL 360309 (Bernalillo County, N.M. Dist. Ct. Aug. 18, 1994).

Also, note that the 7th Circuit Appeals decision mentioned in the Wiki entry above is ANGELINA AND JACK MCMAHON v BUNN-O-MATIC CORP., ET AL and has some differences from the Liebeck case.

First, the holding temperature at issue was 179, not up to 190 as in the case at hand. Second, and more important, the plaintiffs in the cited case were suing a manufacturer, not a provider; this distinction is important and was the foundation for much of Judge Easterbrook's opinion which includes:

"Start with the contention that Bunn's coffee maker was negligently designed because [...] 'at the temperatures at which this coffee was brewed and maintained the structural integrity of the styrofoam cup into which the coffee was poured would be compromised making it more flexible and likely to give way or collapse when its rigid lid is removed.' It is far from clear to us that this effect, if a substantial one, should be laid at the door of Bunn rather than of the cup's producer[...]."

Judge Easterbrook is pointing out that the manufacturer did not make the decision to design their coffee maker with full knowledge of the containers into which they would be poured; obviously McDonald's is in a different position and there is no clear conclusion that the judge would've held differently than was in the McDonald's case based on these facts alone.

Also, I was mistaken regarding the study of temperatures of coffee at other restaurants; the study was done for a different case in 1986 in Texas but the results still hold true and were reported in the WSF (as cited here: http://www.vanosteen.com/mcdonalds-coffee-lawsuit.htm [vanosteen.com])

I realize we've gone far astray from my initial point (the success of modifying corporate decisions via the torts system) but for years I believed the myths about this case and saw it as a symptom of what was wrong with the legal system in the U.S. The more I learned about the actual case the more I realized that I was mistaken; I take the opportunity to enlighten others about the facts if possible. I recognize that frivolous lawsuits exist but do not feel that this is one of them. Ms. Liebeck died in 2004 after contending with not just the "incident" but also many jokes unjustly made at her expense and I think that's a shame.

Take a swig of 140F coffee -- the temperature your home coffee maker produces. You'll swallow in a hurry, your mouth will feel tender for a few minutes, and you might express your discomfort.

Take a swig of 165F coffee -- the temperature your local restaraunt keeps theirs at. You might swallow, you might spit it out, you'll probably curse for a bit, and your mouth will stop hurting by the end of the day.

Granted, $16M is still just half a percent of their net income for 2008, but half a percent is probably enough. For someone making $50k/yr, half a percent of that would be $250 -- enough of a penalty to make most people take notice.

From the description:"and either used or attempted to use Comcast service to use the Ares, BitTorrent, eDonkey, FastTrack or Gnutella P2P protocols at any time from April 1, 2006 to December 31, 2008;"
Well, I think their $16 million just blew up. Since bittorrent is a P2P service, I'm sure any one who used bittorrent AT ALL "attempted to use Comcast service" to download something.

There are a lot of people (I'm one) who uses BitTorrent, etc. to download Linux distros, FOS software, music that the artist encourages you to share (and there's more of that than there is RIAA music), etc.

P2P is not proof of illicit activity, although the RIAA wants everyone to think it is.

P2P is not proof of illicit activity, although the RIAA wants everyone to think it is.

Absolutely correct. But to the uneducated masses, P2P users are all downloading illegal materials. Just like Tor users.
Educating people is the only way to clear this up.

I'm not sure if "education" is the word for "when monied interests are involved, don't assume you know anything about a subject until you've investigated it for yourself." Maybe "common sense" is a better word for that?

... this efficient new way for RIAA and MPAA to identify people to sue - for $16 I am of course very likely to say "hey, I use p2p!" (or go through the shame of admitting that I use Lotus Notes) and then wait for the gazillion dollar lawsuit to come my way for downloading Ubuntu 7...

Got love how everyday people will get sued by corporations for many times their annual income ( $80,000 a song) but when it comes to corporations getting sued it equates to a far lower ratio. Any one else think its kind of silly.

The problem is many of the laws on the books that crimes that ordinary people are committing were once ones that only organizations can do.

Lets just use Copyright infringement, back even 20 years ago being able to copy music from one device and spread it to millions of people needed a lot of money and resources. Today one person can do it and have it spread like wildfire. But the laws for fines for such actions are still based on the old model. Sure it would $80,000 good fine for say a Radio Station to P

Yes. Unfortunately U.S. laws are usually written to favor corporations at the expense of individuals.

Actually, they're (mostly) written to pretend that there is no difference between people and corporations. If you think these two classes of entity are one and the same, clap your hands together and say "I believe in bailouts!"

I've always felt that all fines (anything from traffic violations to sanctions against companies) should be a percentage of the target's net worth. This completely eliminates the concern that the law is much more of a deterrent against poor people and small organizations while hardly amounting to a rounding error for the wealthy and multinational corporations.

Assuming someone paid for only internet access at $35 per month during the time Comcast was infringing their rights they would have paid Comcast $1,155. Comcast is only required to pay damages of 1%? Wow... that's Comcastic!

I'm a Comcast customer, I was throttled, I've never used my connection to download music or movies (TV shows and OSS only), and I still don't think I want to apply for my $16 pittance.

Prediction: The sharks who ran this class-action suit aren't going to be satisfied with $6.4 million (the usual 40% of $16 million), and they're going to make a few more bucks sell the names and details to RIAA/MPAA so everyone who receives their $16 will be slapped with a $999999 gazillion lawsuit for illegal file sharing. Most of the P2P users end up disconnected and eventually homeless after the spate of ruinous P2P lawsuits, Comcast gets to dump their heaviest-bandwidth users, everyone wins except the granny whose next door neighbor mooched off her WiFi and got a copy of Avatar.

I don't think Comcast will necessarily have access to the names and addresses. Usually Comcast pays their money to the lawyers who initiated the class action suit, and the lawyers then divvy it up by the approximate number of people in the class, minus their traditional 40% that they keep. Then, any unclaimed amounts, they keep. Plus they have the names and addresses which they keep.

It won't be Comcast handing the names and addresses over to MPAA/RIAA. I'd actually trust Comcast with that information mor

Tell me, who wants to exclude themselves from this lawsuit, and maybe hire one of those country type lawyers, say like one of those that live in New York for a "real" case that will not just be settled? I have had too much trouble with my Comcastic service, and tired of even my Internet being throttled. I can go to Speedtest.net and it automagically lets Google load up the page. Without it, even Google may have a hard time. I have actually resorted to having TabMixPlus reload the Speedtest.net tab about eve

The lawyers working this have no interest in paying you the $16. They have no interest in stopping Comcast from doing this. Their interest in both ended when their bribe check to the judge cleared and they got granted "class action" status. From that point forward it was all about maximizing the settlement and minimizing effort.

Comcast knew this, of course, and pulled some money out of petty cash so the lawyers could make $6 million in cash today and move on to the next righteous-looking yet profitable c

How can people on Slashdot be so fucking dumb? If Comcast wanted to sell your name to the RIAA or MPAA, they already have all the information they need. Hell, they could hand over your credit card number, if they wanted to.

Hmm let's see. If I was Comcast I could invest in a) a whole army of staff and hardware to collect data on users who were using bit torrent, edonkey, etc, then risk being sued by giving that data to a 3rd party, or b) I could get the LAWYERS for the plaintiff to collect that data for me, and hand it over to a 3rd party without ANY risk of legal fallout (after all, the exact terms of the settlement are confidential). Hmmmmmm, I dunno - which is better? Brains

Comcast in my area will start cutting connection to your modem if you use full bandwidth bittorrent for more than a few minutes. Reset your modem, and you're fine for another couple minutes, then it's out again.

If you turn off bittorrent, or throttle the settings back to rediculously low levels (say, 384 kbps download and 32kbps upload), there's no problem at all. If I pull a couple hundred megs down off a website or do a huge ubuntu update at full speed (1.8megabytes a second or so) I never have any proble

Comcast in my area will start cutting connection to your modem if you use full bandwidth bittorrent for more than a few minutes.

For me, it's not Comcast but the router. If I torrent without throttling, the router crashes, and I have to power-cycle it to get it going again. I don't think the stock firmware versions on home NAT-router appliances are intended to handle dozens of simultaneous inbound connections.

If I pull a couple hundred megs down off a website or do a huge ubuntu update at full speed (1.8megabytes a second or so) I never have any problems

Can't run a business on one of their residential lines (which extreme 50 is)

I must have confused it with the corresponding tier of Comcast Business Class, which Comcast is promoting all the time on the cable news channels.

I can't imagine what most people would max out a 50mbps connection for, for 8 hours, other than downloading extremely large files (I.e. pirated games, movies, etc).

Steam is not "pirated", nor is iTunes Store. Blu-ray movies are streamed from the disc at 54 Mbps.

I'm sure that somebody else out there uses it for some legitimate reason, I'm just saying that those users are few and far between

As Internet connection speeds in the United States and Canada slowly climb to match those available in Japan and the Republic of Korea, and as the size of an operating system service pack continues to climb (it's currently about 200 MB for Windows, Mac OS X, or Ubuntu

When the router is working, I can visit http://192.168.1.1/ [192.168.1.1] and get a password prompt to log in to the router's web-based administration panel. When it's frozen, I get a timeout from 192.168.1.1.

I would test it without the router in place

How, when the router's firewall is the only thing keeping worm packets from reaching the LAN?

I'd like to receive my $16, as I was unable to download numerous hit Hollywood movies and popular music at acceptable speeds while on your service. I was affected while using such protocols as E-donkey, Bittorrent, Limewire, Gnutella, and anything else that might get me sued. Please send the check to my address above.

Phase 1: Find as many geeks in your area that are eligible for the settlement.

Phase 1a: Jump through the hoops this settlement will likely require ("Submissions must be sent on a 3x5 index card, handwritten in blue ink with no misspelled words, and a tiny drawing of a European Swallow hand drawn in the lower left hand corner not to exceed 13% the total area of the card...")

Phase 2: ????

Phase 3: Have everyone deposit their checks, then send $16.00 donations to the EFF, OpenSSH Foundation, FSF, or FOSS project of your choice.

used or attempted to use Comcast service to use the Ares, BitTorrent, eDonkey, FastTrack or Gnutella P2P protocols

Ok, so if your Blizzard updater got throttled, you can't say a word? You have to sign a paper confessing that you used one of those specific P2P client, where 99% of the users are downloading copyrighted material?

I'm a Comcast user, and as soon as I fire up bit-torrent my cable-modem starts resetting every 2 minutes or so. That has to be Comcast. Takes my cable-modem a minute to cycle through the reset sequence, during which time I'm offline. This tactic seems more egregious, though. Before, they were just interfering with packets. Now they're interrupting my service. Turn off bit-torrent, cable modem and service runs like a charm. Mysterious, isn't it....

PPalmgren's suggestion is certainly worth investigating, but have you tried throttling your upload speed on your client? I had some serious problems until I cut way back on my upload speed and that made things calm down. I have no issues with downloading as fast as possible, but things start to get very bad for me if I allow the default unlimited speed on uploads. I have AT&T and not Comcast, but maybe you might look into that and see if it makes any difference.

I had this same issue. It is Comcast, but it is because they gave you a faulty modem (either crappy, broken or misconfigured). File a complaint, then demand a new modem.

Also make sure to get a new modem directly from Comcast. Many of the at-home technicians are outsourced to other companies. At least in my area, most of these companies just take defective modems from one location and then use it at the next house call (this was verified by two Comcast employees). If you get it directly from a Comcast l

I had that problem. I use Comcast Business. I found that when they upgraded my speed from 6mbps to 12mbps my WRT54G router would crash if I used bittorrent. It turns out they are giving me 20mbps with it reaching 30mbps at times. I upgraded my router to an AR670W (not the best choice, but it was cheap) and my problems just went away. There was no question that the router was the problem.

Yes, there should be legal repercussions for a company doing something like this to its customers. Unfortuneately, lawyers aren't cheap and companies can pay to have more of them. While more doesn't mean better, it does reduce your chances of being able to go up against such a company. Of course it would be different if you identified the people who were wronged by this ahead of time and had each one chip in five bucks for a legal team ($5 X 1 million people, you get the idea).

You may be eligible for up to $16 restitution if you live in the United States or its Territories, have a current or former Comcast High-Speed Internet account, and either used or attempted to use Comcast service to use the Ares, BitTorrent, eDonkey, FastTrack or Gnutella P2P protocols at any time from April 1, 2006 to December 31, 2008

Oddly enough, I'm moving to Houston in a week, so I need to sign up for an ISP. Comcast is the only cable provider in the whole city, so they've got the market cornered on speed.
I did the whole "chat now" thing that popped up when checking availability. I asked about bandwidth caps and P2P throttling. They referred me to a tech hotline.
Here's the gist of the conversation with the CS tech rep:
I've got 3 questions, 1) To your knowledge, does Comcast throttle P2P traffic? 2) To your knowledge, does Com

I've wondered for some time (and often aloud, but nobody has ever responded) as to why more software updates aren't done via P2P?

Benefits:

(1) It's more efficient for everybody (I would imagine that bandwidth for folks like MS / AVG / even SourceForge would be lower by at least a magnitude of ten)
(2) It further legitimizes P2P
(3) It forces ISP's hand in treating bittorrents like all other traffic

While I appreciate that the tin-hat-wearers may believe that the MPAA / RIAA wouldn't want such a move I wonder if there are technical aspects of which I'm unaware?

I totally agree, but when we look at the big economic picture, essentially what this practice does is transfer the cost of bandwidth / traffic from the companies offering the downloads to the isps.
many isps, especially in the states, can't do their one single job properly; transfering data. they dont want to put money into upgrading their infrastructure, they want to make the net a one-way street and they want to get paid handsomely for it.
isps having to pick up their own slack and actually doing properly

Have you not been around for the many many times over the past few years where people have shown viable ways to get around the various common (i.e. the ones we use for anything that matters to this discussion) hashing algorithms?

Hashes are a level of authentication, but they are defeat able, just gotta find the right spot and the right payload.

With P2P you are willingly accepting data from many people you know nothing about. When HTTP, even with